Federal trademark law prohibits federal trademark registrations on words which, when used in connection with the goods, are merely descriptive. A cursory Google search reveals over 6,000 uses of the words “footlong sandwich” apart from the term “Subway.” Notwithstanding, Subway is sending out cease and desist letters arguing it has exclusive rights in the term “footlong” for its goods and services. One recipient of the cease and desist letter is a hotdog vendor who had been using the word “footlong” to sell 12 inch hotdogs for over 40 years.
Not surprisingly, after a backlash of bad press, Subway backed down, explaining away the cease and desist letter as a “clerical error.” Subway spokesman Kevin Kane implied however, that Subway would continue to pursue those who use the word “footlong” to sell “sandwiches,” rather than hotdogs. One wonders whether continued internet backlash or even talk of a boycott will encourage Subway to reassess its current public relations strategy.